Plush Lounge Las Vegas LLC v. Hotspur Resorts Nevada Inc.

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLUSH LOUNGE LAS VEGAS LLC,
Plaintiff - Appellant,
v.
HOTSPUR RESORTS NEVADA INC.,
Defendant - Appellee.
No. 08-56953
D.C. No. 2:06-cv-02626-GW-JTL
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted March 5, 2010
Pasadena, California
Before: GOULD, IKUTA and N.R. SMITH, Circuit Judges.
Plush Lounge Las Vegas, LLC appeals the district court’s grant of summary
judgment to Hotspur Resorts Nevada, Inc. on Plush’s antitrust action under Section
2 of the Sherman Act, 15 U.S.C. § 2. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
FILED
MAR 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Plush argues that the district court erred in granting Hotspur summary
judgment on Plush’s Sherman Act claim. At summary judgment, an antitrust
plaintiff asserting a claim under Sherman Act Section 2 must submit admissible
evidence of the relevant product and geographic market that would be sufficient to
sustain a jury verdict on the issue of market definition. Rebel Oil Co. v. Atl.
Richfield Co., 51 F.3d 1421, 1435 (9th Cir. 1995) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986)); see also Fed. R. Civ. P. 56(e). Absent such evidence,
summary judgment is appropriate. Rebel Oil, 51 F.3d at 1435.
Plush submitted the declarations of Roland Katavic and Jerrold S. Pressman
in support of a proposed market definition of “cocktails and hors d’oeuvres in an
entertainment atmosphere within the [Hotspur] Resort.” The district court ruled
that neither Katavic nor Pressman qualified as an expert under Federal Rule of
Evidence 702 and struck the portions of each declaration that purported to define
the relevant market. We review the district court’s decision to exclude expert
testimony for an abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S.
137, 152 (1999). A district court abuses its discretion when it applies an incorrect
legal standard, or when it applies the correct legal standard but does so in a manner
that is illogical, implausible, or without support in the record. United States v.
Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).

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3
The district court did not abuse its discretion in striking large portions of the
Katavic and Pressman declarations. Neither declarant provided adequate
foundational information about what training—whether in the classroom or on the
job—gave rise to their ability to define a market for antitrust purposes. The
declarants’ reference to their business experience, without more, was insufficient.
The declarations presented legal conclusions without underlying factual support,
and therefore constitute “unsupported speculation.” See Daubert v. Merrell Dow
Pharms., Inc., 509 U.S. 579, 590 (1993). Finally, neither declarant provided an
explanation of the methodology used to arrive at the proposed market definition.
See Kumho Tire, 526 U.S. at 151. Given these deficiencies, it was not illogical for
the district court to determine that the declarations fell short of the reliability and
relevancy requirements for the admissibility of expert testimony under Rule 702.
See id. at 152. The district court did not abuse its discretion in sustaining
Hotspur’s objections to the portions of the Katavic and Pressman declarations that
purported to define the relevant market.
With large portions of the Katavic and Pressman declarations stricken, Plush
had insufficient evidence to sustain a jury verdict on its proposed market
definition. The applicable market definition is not an opinion based on Katavic’s
or Pressman’s sensory perception, so, contrary to Plush’s argument, the district

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1 Because we resolve this appeal on the basis of affirming the
evidentiary rulings and our view of the lack of admissible evidence on relevant
product market, we need not and do not reach other issues of antitrust law raised by
the parties and urged to be pertinent to the summary judgment.
4
court could not have admitted their market definitions as lay opinions. See Fed. R.
Evid. 701(a); United States v. Durham, 464 F.3d 976, 982 (9th Cir. 2006)
(explaining that an admissible lay opinion must be predicated on facts perceived
with the witness’s own senses). Outside of the Katavic and Pressman declarations,
Plush’s only evidence of market definition was a citation to two statements made
by Hotspur’s managers during their depositions. In these statements Mr. Roberts
stated “yes” when asked whether there was a market within the resort and a larger
market outside the resort, and Mr. Roughley stated that 75–85% of hotel guests and
conventioneers use the resort’s food and beverage services. Neither statement,
however, refers to the relevant product market, so even if the statements were
admissible at trial they would be insufficient to sustain a jury verdict on the issue
of market definition. 1
AFFIRMED.

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